Earlier this month, the Occupational Safety and Health Administration (OSHA) announced its intention to propose a later deadline for the submission of injury and illness data in compliance with the agency’s electronic recordkeeping requirement, originally scheduled for July 1. In a new proposed rule, OSHA suggests pushing the deadline for the electronic submission of injury and illness reports to December 1, 2017 – and hints that other changes may be not be far ahead.
The proposed rule, which will remain open for public comment until July 13, specifies that OSHA is currently only soliciting opinions on the compliance delay. However, it also states that OSHA “intends to issue a separate proposal to reconsider, revise, or remove other provisions of the prior final rule.” The electronic recordkeeping portion itself is likely to come under particular scrutiny, as one of OSHA’s stated reasons for proposing a delay is explicitly “to provide the new administration an opportunity to review the new electronic recordkeeping requirements prior to their implementation.”
While employers have raised objections to many provisions of the Improve Tracking of Workplace Injury and Illness rule, such as its restrictions on drug testing and popular safety incentive programs, the electronic recordkeeping portion of the rule has provoked particular controversy. This section requires establishments with 250 employees, as well as smaller establishments in certain high-risk industries, to electronically submit data from the previous year’s Form 300A illness and injury log for use in a searchable public database.
Some employers and business groups, such as the American Sustainable Business Council, have embraced the opportunity to share data to improve worker safety, but others, including the U.S. Chamber of Commerce, have balked at what they characterized as public shaming. The rule is currently facing challenges in two federal courts, but employer groups are hoping that they won’t have to wait for a judge to kill the rule. In early May, a group of construction industry associations asked new Labor Secretary R. Alexander Acosta to reexamine whether OSHA has the legal authority to issue the final rule as written.
One of the first actions of the newly-inaugurated Trump administration was to issue a memorandum to federal agencies, asking them to freeze the regulatory process until new and pending rules could be examined by department heads approved by the new administration. The relatively late confirmation of Secretary Acosta, as well as the lack of a permanent OSHA head and imminent retirement of the current acting assistant secretary, has made the process on labor issues slower than many employers would like. But as the publication of this proposed rule shows, change is beginning to come.
In addition to the compliance delay for electronic recordkeeping, OSHA has also issued a new proposed rule which modifies the beryllium standards for construction and shipyards issued under the previous administration. Secretary Acosta also stated that the Department of Labor will be reviewing the Obama-era overtime rule, which is currently enjoined by a federal court, and returning to the practice of issuing opinion letters, which offer individualized advice in response to specific employer questions rather than broader guidance.
Although the Improve Tracking of Workplace Injury and Illness rule is likely to undergo changes, it is still currently in effect – although the submission date was not until July 1, the electronic recordkeeping provisions became effective on January 1, 2017, and provisions covering retaliation went into effect in December of last year. OSHA did not complete the new electronic reporting system required in the regulations by the original July 1 deadline, but the new proposed rule states that it will be available by August 1. OSHA suggests that employers should use the four month preparation window to familiarize themselves with the system before the new compliance date.